Soumen
in Consumer Law Criminal Law
Asked August 01, 2014

Medical Negligence

  • 1 Answer
  • 197 Views

I am intending to file a case for medical negligence for the death of my wife. I also want to complain to the medical council. Please help.

Answer 1

Dear Client,

Professional negligence or medical negligence may be defined as want of reasonable degree of care or skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to bodily injury or to loss of life.Consumerism is now firmly established in the medical practice and the notion that blame may be attributed and compensated has a high priority.

A medical service falls under the purview the Consumer Protection Act in the following cases:

  • Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical.
  • Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services.
  • Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge, irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.
  • Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.
  • Service rendered by a medical practitioner or hospital/nursing home if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company.
  • Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service
  • The National Consumer Disputes Redressal Commission (NCDRC), highest consumer court in India, passed a historic judgment granting an award of Rs. 1.1 crore (Rs. 1 crore compensation plus Rs. 10 lakh as “punitive damage”) against the Apollo Hospital in New Delhi for wrongful delivery of a child causing permanent damage in his brain in a botched up medical procedure in 1999 (see the entire judgment below). This historic compensation was allowed on the basis of Anuradha Saha decision by the Supreme Court in 2013 in which the Apex Court awarded a total of more than Rs. 11.5 crore as compensation and held that compensation involving “medical negligence” cannot be calculated using the straight-jacket formula of “multiplier” method that had been the norm until then. Apart from Anuradha Saha’s case, this is the second highest compensation in Indian medical history against a top hospital like Apollo. Following the principles set in Anuradha Saha case, NCDRC has directed Apollo Hospital to pay Rs. 80 lakh and the main accused doctor, Dr. Sohini Verma, to pay Rs. 20 lakh. The “punitive” or exemplary damage of Rs. 10 lakh is also significant in context of Indian medical practice because “punitive” damages are awarded (mostly in Western countries) against an act of social significance and thus, all future cases of “medical negligence” where the doctor/hospital is found guilty, “punitive” damages should be awarded by the state and district consumer forums. This historic judgment by the National Consumer Forum will undoubtedly bring a ray of hope for the thousands of hapless victims of medical negligence who have been waiting for their day of justice. It will also send a strong signal to the negligent doctors and hospitals in India.

    Thanks & Regards,

    Advocate Sandip Bhosale (LL.M)

    9028274763

    sandeepbhosalebsl@gmail.com

    Agree Comment 1 Agree about 1 year ago

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